Congressional control over the courts? History says no, but it could happen

BLOOMINGTON, Ind. -- Despite regular confrontations with the courts throughout American history, Congress has rarely used its powers to control the federal judiciary. But that tradition may be changing, according to an Indiana University Bloomington law professor.

An intensifying partisan divide over the future of America's judicial system, which threatens to undermine public confidence in our courts and the rule of law, is jeopardizing the longstanding balance between the courts and Congress, argues Charles Geyh in his debut book, When Courts and Congress Collide: The Struggle for Control of America's Judicial System (University of Michigan Press, 2006).

History has shown that congressional proposals to control the decisions judges make by impeaching them, taking away their jurisdiction, holding their budgets hostage or "un-making" their courts rarely succeed, said Geyh, a professor of law and Charles L. Whistler faculty fellow at the IU School of Law-Bloomington.

Yet he believes that the recent round of attacks on courts -- from Congress, pundits and evangelical conservatives -- has increased the possibility that current proposals to control the federal judiciary might actually succeed.

"There's this confluence of events -- you might call it a perfect storm of factors -- where you have a deeply polarized public, an evangelical right sharpening the divide over moral issues that ultimately the courts will have to decide, and a new way of looking at judges as being controlled by their political preferences," Geyh said. "In this environment, it may prove extremely difficult to preserve a system where we give judges breathing room and latitude to decide cases without legislative interference."

While Congress has long been willing to influence judicial decision-making indirectly by blocking the appointments of ideologically unacceptable nominees, it has, with rare exceptions, resisted employing more direct methods of control. So why hasn't Congress made good on its threats to strip federal judges of their autonomy? Geyh believes the answer lies in a custom of respect for the judiciary's independence that Congress has honored for two centuries. This custom is grounded in the belief that judges will usually decide cases based on the facts and the law and seek immunity from political and other pressures that could corrupt their impartial judgment, he said.

More recently, though, scholars and policy makers have challenged that belief and argued that "independent" judges routinely disregard the law and decide cases in light of their personal politics. This ongoing campaign against "judicial activism" and "legislating from the bench" has eroded public confidence in the courts, Geyh said. Along with an escalating battle between the nation's political parties for control of judicial appointments, it has created a potentially destabilizing environment that threatens to jeopardize the "dynamic equilibrium" between Congress and the courts.

"If you already believe that judges aren't following the law and are guided by their political preferences, then why even have independent judges?" Geyh asks. "Why not just control them?"

When Courts and Congress Collide is the first work to demonstrate that the balance between Congress and the federal judiciary is governed by the constant give-and-take between Congress' desire to control the judiciary and its respect for historical norms of judicial independence. The book examines congressional efforts to check the power of the courts, the ways in which the politics of the judicial appointments process has changed over the years, the role courts have played in preserving their autonomy, how to balance judicial independence with judicial accountability, and what the future holds for independent courts and the rule of law.

For judges, lawyers and policy makers, the book is meant to be a "wake-up call," Geyh said. "Judicial independence is not so much an immutable feature of the Constitution as a longstanding custom that is subject to change. If it is a custom worth preserving, it is one that needs to be defended."

To speak with Geyh, contact Ryan Piurek, IU Media Relations, at 812-855-5393 or rpiurek@indiana.edu, or Debbie O'Leary, IU School of Law-Bloomington, at 812-855-2426 or devo99@indiana.edu.

Media wishing to receive a copy of the book should contact Mary Bisbee-Beek, University of Michigan Press, 734-764-4330 or bisbeeb@umich.edu.